Bales v. Bell
Filing
7
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Granting in Part a Certificate of Appealability. Signed by District Judge Denise Page Hood. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY BALES,
Petitioner,
CASE NO. 2:10-CV-13480
HONORABLE DENISE PAGE HOOD
v.
THOMAS BELL,
Respondent.
__________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND GRANTING IN PART A
CERTIFICATE OF APPEALABILITY
I.
Introduction
Jerry Bales (“Petitioner”), through counsel, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging his Wayne County Circuit
Court convictions on two counts of second-degree criminal sexual conduct, MICH.
COMP. LAWS § 750.520c(1)(a), for which he was sentenced to concurrent terms of
4 to 15 years imprisonment in 2005. In his pleadings, he raises claims concerning
the non-disclosure of evidence, prosecutorial misconduct, the exclusion of
proposed defense testimony, and the effectiveness of trial and appellate counsel.
Respondent has filed an answer to the petition contending that it should be denied.
1
For the reasons stated herein, the Court concludes that Petitioner’s claims lack
merit and that the habeas petition should be denied. The Court, however, also
concludes that a certificate of appealability should be granted in part.
II.
Facts and Procedural History
Petitioner’s convictions arise from the sexual assault of his niece, Whitney
G.1 (“victim”), at his home in Southgate, Michigan when she was seven or eight
years old. Petitioner and his wife, Linda Bales, were also the victim’s godparents.
The victim began visiting Petitioner’s home alone when she was three or four years
old, staying overnight on weekends and going on camping trips. Her siblings, a
younger brother and two younger sisters, only accompanied her every few months.
Over the years, Petitioner and Linda bought the victim many items, including
school clothes, electronics, bicycles, and jewelry. The allegations of sexual abuse
came to light in 2004 when the victim was 12 years old and Petitioner and Linda
were ending their marriage.
Until Petitioner and Linda began their divorce
proceedings, there had never been any accusations of improper conduct. Linda
admitted that she had never seen anything out of the ordinary between Petitioner
and the victim.
1
To protect the identity of the victim and a testifying witness who were minors at
the time of the sexual assaults, the Court shall refer to them and their family
members by their first names and the first initial of their last names.
2
After separating from Petitioner, Linda called the victim’s parents and told
them she was divorcing Petitioner. Linda asked to speak with the victim’s parents,
outside of the children’s presence. She told them that her daughter-in-law, Jennifer
Szczesniak, had made allegations of improper conduct against Petitioner and she
was concerned about the victim. Jennifer did not testify at trial and no further
inquiry was made into those allegations. Linda and the victim’s parents went to a
park to discuss the matter. The victim’s mother, Tamra G., testified that she and
her husband argue with Linda a little because they thought it was “apples and
oranges” and there was no cause for concern. Eventually, they called the victim
and had her come to the park.
When the victim arrived at the park, her mother asked her if Petitioner had
ever touched her “in a way that an uncle shouldn’t have.” The victim started
crying and said that Petitioner had done something to her, but made no specific
allegations. Because the victim did not want to speak in front of her father, she
and her mother took a walk. On the walk, the victim told her mother what had
happened between her and Petitioner. The victim was eventually taken to the
police and made specific allegations which formed the basis of the charges against
Petitioner – two counts of second-degree criminal sexual conduct and one count of
assault with intent to commit second-degree criminal sexual conduct.
3
At trial, the victim recalled visiting Petitioner’s home when she was seven or
eight years old and testified that Petitioner touched her inner thighs and vagina
over her clothes when they were alone in the house.
Petitioner did not say
anything when he touched her, but afterward he told her not to tell anyone. She
was usually quiet, but sometimes she would ask him to stop. On a few occasions,
he grabbed her wrist and moved her hand toward his penis, but she pulled away
because she was uncomfortable. Petitioner also told inappropriate jokes and told
her that she had a good body. The victim felt nervous around Petitioner when she
was alone with him. She also testified that Petitioner exposed himself to her on
one occasion. She admitted that this was a new allegation, but explained that her
memory was improving and that she recently remembered more things that had
occurred. The victim also testified that shortly after she began menstruating,
Petitioner told her that he was going to have one of the victim’s younger sisters
start coming over instead of her. The victim was mad that she would not be able to
see her aunt anymore. The victim also recalled meeting with her parents at the
park and telling her mom and the authorities about the sexual abuse.
Andrea S., who was 26 years old at the time of trial, testified as an other acts
witness. She became involved in the case after Linda Bales contacted her father,
Bob S., several months after Petitioner was charged in the case to talk to him about
Andrea and Petitioner. Andrea’s father then called her, told her that Petitioner had
4
been accused of child molestation, and asked if he had done anything to her.
Andrea told her father that Petitioner had sexually abused her when she was a
child. She subsequently spoke to the authorities. At trial, Andrea explained that
when she was about 12 years old, Linda and Petitioner took her on a car trip to
Georgia and New Orleans. Andrea stayed at their home in Southgate the night
before the trip. That night, Petitioner entered Andrea’s room and exposed his
penis. Petitioner came back and forth to the room during the night several times,
exposing his penis and touching Andrea’s breasts and the rest of her body. At one
point, Petitioner was on top of Andrea and penetrated her vagina. At certain times
while they were on the trip, Petitioner touched her and made lewd comments to
her. After the trip, Petitioner stalked her at school, picked her up from school, and
visited her house when her parents were not home. Sometimes she let him in the
house. When she did, he molested her. Other times, she would hide in the house,
stay with a neighbor boy, or go to a friend’s house. The last time that Petitioner
came to her house, he forced open a door and she ran outside and hid in the woods.
Andrea said her grandmother found Petitioner at the house alone with her a few
times, but assumed he was there to see her mother. Andrea recalled that Petitioner
and Linda visited less frequently and then stopped visiting altogether in 1994 or
1995. She knew that Linda’s brother had adopted children but she never met the
victim.
On cross-examination, Andrea acknowledged inconsistencies in her
5
testimony and explained that the incidents had occurred long ago and she had tried
to forget about them over the years.
Linda Bales testified about her relationship with Petitioner, the victim, and
Andrea S. The sexual abuse came to light at the time she decided to divorce
Petitioner.
Linda explained that she and Petitioner had a fight one day and
Petitioner chased her out of the house and threatened to kill her. She went to her
son’s house and told him that she was getting a divorce. His wife Jennifer told her
“disturbing” information about Petitioner.
Based upon that conversation, she
contacted the victim’s parents. They subsequently met, went to the park, spoke
with the victim, and learned of her claims of sexual abuse. Linda testified that she
loved the victim and that she and Petitioner spoiled her and wanted to make her
happy. The victim spent weekends at their house and they took her camping.
They had her siblings over occasionally, but mostly just the victim. Petitioner and
the victim were often alone together on Fridays due to Linda’s work schedule.
As to Andrea S., Linda testified that she and Andrea’s mother were good
friends for years before they lost contact. Andrea’s mother also worked with
Petitioner. Linda recalled taking Andrea to Georgia and New Orleans and said that
Petitioner and Andrea were sometimes alone together. She and Petitioner also
bought Andrea things and Petitioner bought her jewelry. After Petitioner was
charged, Linda contacted Andrea’s father to discuss the situation. Linda also
6
spoke to Andrea’s mother who was upset about what Andrea reported. Linda
admitted that she did not observe any improper conduct between Petitioner and the
victim or Andrea.
Petitioner’s sister, Jane Duvall, testified that the victim acted happy around
Petitioner and was “all over him” when they did things together. She thought that
the victim was a good kid who would not harm anyone. Jane learned that Andrea
S. went with Petitioner and Linda down south to see his son and claimed that
Petitioner was not happy about having to take Andrea S. with them. Jane also
testified that she was present when Linda was removing some of her belongings
from Petitioner’s home during their break-up. During that visit, Linda told her that
Petitioner was being investigated and was going to jail and she would get
everything anyway. Linda denied making such a comment.
Petitioner testified in his own defense at trial. He denied touching the victim
inappropriately. He was scared, upset, depressed, and angry when he learned of
the allegations. Petitioner said that the victim used to “hang all over” him and
enjoyed spending time with him. He acknowledged that they spent a fair amount
of time alone together. He claimed that the victim was mad at him because he
disciplined her the last time she visited his house. Petitioner explained that the
victim went into the pool against his instructions and dropped her wet towels on
his new carpeting.
The victim and her mother admitted that the victim and
7
Petitioner had a disagreement, but claimed it was about something else. Petitioner
also denied touching Andrea S. inappropriately. He recalled taking the trip down
south with Linda and Andrea for his son’s military graduation and testified that he
spent a lot of time with his son. Petitioner did not recall being alone with Andrea
or going to her house alone.
Defense counsel twice moved for a mistrial alleging prosecutorial
misconduct, but the trial court denied both requests. The first motion came after
the prosecution had rested.
Defense counsel asked that the prosecutor be
disciplined for calling him unethical in front of the jury. The trial court denied the
motion, and admonished both the prosecutor and defense counsel for “comments
on what the witness said, rather than asking them particular questions.” The judge
reminded both attorneys to address the court, not each other, if they had a legal
objection. The second motion came after closing arguments. Defense counsel
cited the prosecutor’s attacks on defense counsel and Petitioner’s character, as well
as objections designed to inflame the jury. The judge denied the motion, finding
that the jury instruction that the attorneys’ comments are not evidence would be
sufficient to prevent any prejudice.
At the close of trial, the jury found Petitioner guilty of two counts of seconddegree criminal sexual conduct, but not guilty of assault with intent to commit
8
second-degree criminal sexual conduct. The trial court subsequently sentenced
Petitioner to concurrent terms of four to 15 years imprisonment.2
Following his convictions and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals, as well as a motion to remand. He raised the
following claims:
I.
He was denied his rights to a fair trial due to the
pervasive misconduct of the prosecutor.
II.
The trial court’s refusal to grant an extra peremptory
challenge to exclude a juror who had a close friend who
was raped denied him the right to a fair and impartial
jury.
III.
The trial court erred in admitting character and
propensity evidence.
IV.
The trial court erred in allowing a rebuttal witness to
testify that Petitioner told dirty jokes in front of children
as the testimony exceeded the scope of proper rebuttal.
V.
The trial court denied him the right to present a defense
by excluding relevant defense evidence.
VI.
The cumulative effect of the errors at trial denied him a
fair trial.
VII. The trial court violated his jury trial rights by increasing
his sentence based upon factors not found by a jury and
one factor on which the jury acquitted him and violated
his due process rights by relying upon inaccurate
information at sentencing.
2
Petitioner was paroled on September 8, 2010 and discharged from state custody
on September 8, 2012.
9
The Michigan Court of Appeals denied the motion to remand, denied relief on the
claims, and affirmed Petitioner’s convictions and sentence. People v. Bales, No.
267756, 2007 WL 1203536 (Mich. Ct. App. Apr. 24, 2007) (unpublished).
Petitioner filed an application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v. Bales, 480 Mich. 928, 740
N.W.2d 302 (2007).
Petitioner subsequently filed a motion for relief from judgment with the state
trial court raising the following claims in his original and amended motion:
I.
The prosecutor violated his constitutional rights by
failing to disclose police reports and witness statements.
II.
Newly-discovered evidence shows that he did not receive
a fair trial.
III.
Trial counsel was ineffective for failing to object to
certain instances of prosecutorial misconduct.
IV.
Appellate counsel was ineffective for failing to raise trial
counsel’s ineffectiveness on direct appeal.
The trial court denied relief and denied reconsideration. Petitioner then filed an
application for leave to appeal with the Michigan Court of Appeals, as well as a
motion to remand. The Michigan Court of Appeals denied the motion and denied
leave to appeal because Petitioner “failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” People v. Bales, No. 292320 (Mich.
Ct. App. Sept. 23, 2009) (unpublished). Petitioner filed an application for leave to
10
appeal with the Michigan Supreme Court, which was similarly denied. People v.
Bales, 486 Mich. 1039, 783 N.W.2d 121 (2010).
Petitioner thereafter filed his federal habeas petition raising the following
claims:
I.
The prosecution failed to disclose important police
reports and witness statements that showed key
prosecution witnesses were lying at trial.
II.
He was denied his right to a fair trial due to the pervasive
misconduct of the prosecutor.
III.
The trial court denied him the right to present a defense
by excluding relevant defense evidence.
IV.
Trial counsel was ineffective for failing to object to each
instance of prosecutorial misconduct, and appellate
counsel was ineffective for failing to raise trial counsel’s
ineffectiveness on direct appeal.
Respondent has filed an answer to the petition contending that it should be denied
because the claims are barred by procedural default and/or lack of merit. Petitioner
has filed a reply to that answer.
III.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified 28 U.S.C. § 2241 et seq., provides the standard of review for federal
habeas cases brought by state prisoners. The AEDPA provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
11
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)
(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,
535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of §
2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court but
unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v.
Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also
Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court’s
application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
12
decision must have been more than incorrect or erroneous. The state court’s
application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 52021 (citations omitted); see also Williams, 529 U.S. at 409. The “AEDPA thus
imposes a ‘highly deferential standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.
Lett, 559 U.S. 766, 772(2010) (quoting Lindh, 521 U.S. at 333, n.7); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The Supreme Court recently held that “a state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.” Harrington v.
Richter, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a strong case
for relief does not mean the state court’s contrary conclusion was unreasonable.”
Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a
habeas court must determine what arguments or theories supported or . . . could
have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus,
in order to obtain habeas relief in federal court, a state prisoner must show that the
state court’s rejection of his claim “was so lacking in justification that there was
13
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id.
Section 2254(d)(1) limits a federal habeas court’s review to a determination
of whether the state court’s decision comports with clearly established federal law
as determined by the Supreme Court at the time the state court renders its
decision. See Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556
U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous
occasions that it is not ‘an unreasonable application of clearly established Federal
law’ for a state court to decline to apply a specific legal rule that has not been
squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120,
125-26 (2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
Section 2254(d) “does not require a state court to give reasons before its decision
can be deemed to have been ‘adjudicated on the merits.’” Harrington, 131 S. Ct.
at 785. Furthermore, it “does not require citation of [Supreme Court] cases —
indeed, it does not even require awareness of [Supreme Court] cases, so long as
neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While
the requirements of “clearly established law” are to be determined solely by
Supreme Court precedent, the decisions of lower federal courts may be useful in
assessing the reasonableness of the state court’s resolution of an issue.
14
See
Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox,
340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D.
Mich. 2002).
A state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d
358, 360-61 (6th Cir. 1998). Moreover, habeas review is “limited to the record
that was before the state court.” Cullen v. Pinholster, _ U.S. _, 131 S. Ct. 1388,
1398 (2011).
VI. Analysis
A.
Procedural Default
As an initial matter, Respondent contends that some of Petitioner’s claims
are barred by procedural default. It is well-settled, however, that federal courts on
habeas review “are not required to address a procedural-default issue before
deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212,
215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). The
United States Supreme Court has explained the rationale behind such a policy:
“Judicial economy might counsel giving the [other] question priority, for example,
if it were easily resolvable against the habeas petitioner, whereas the proceduralbar issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525. In
15
this case, the procedural issues are intertwined with the merits of Petitioner’s
issues and the substantive issues are easier to resolve. Accordingly, the Court
shall proceed to the merits of Petitioner’s claims.
B.
Merits
1.
Non-Disclosure of Evidence Claim
Petitioner first asserts that he is entitled to habeas relief because the
prosecutor failed to disclose evidence. Specifically, he claims that the prosecutor
failed to disclose: (1) a nine-page Huron Township police report dated 2/9/05 with
supplements through 3/1/05 concerning Andrea S.’s report that Petitioner sexually
assaulted her when she was a child from 1987 to 1991, (2) handwritten notes
about those assaults which were taken by Andrea S.’s therapist and given to the
police by Andrea S., and (3) handwritten notes from an interview with Jennifer
Szczesniak, who was Linda Bales’ daughter-in-law.
To the extent that Petitioner alleges a violation of the trial court’s discovery
order or state discovery rules, he is not entitled to federal habeas relief. A federal
court may only grant habeas relief to a person who is “in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Trial court errors in the application of state procedure or evidentiary law are not
cognizable as grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). Thus, any claim that the prosecution violated the trial court’s
16
discovery order does not provide a basis for federal habeas relief and must be
denied. Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir. 2002).
Petitioner also asserts a violation of his federal constitutional rights. It is
well-settled that there is no general constitutional right to discovery in a criminal
case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Presser,
844 F.2d 1275, 1281 (6th Cir. 1988). The United States Supreme Court has held
that the prosecutor’s failure to disclose evidence favorable to the defense
constitutes a denial of due process “where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87 (1963). In other words, to find a Brady
violation, not only must the evidence be suppressed, but the suppressed evidence
must be material and favorable to the accused. Elmore v. Foltz, 768 F.2d 773, 777
(6th Cir. 1985).
Favorable evidence is material “if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985); see also
Kyles v. Whitley, 514 U.S. 419, 432-36 (1995). Material evidence is that which is
“so clearly supportive of a claim of innocence that it gives the prosecution notice
of a duty to produce.” United States v. Clark, 988 F.2d 1459, 1467 (6th Cir.
1993). The duty to disclose favorable evidence includes the duty to disclose
17
impeachment evidence. Bagley, 473 U.S. at 682; Giglio v. United States, 405
U.S. 150, 154-55 (1972).
The Brady rule only applies to “the discovery, after trial, of information
which had been known to the prosecution but unknown to the defense.” United
States v. Agurs, 427 U.S. 97, 103 (1976); see also Mullins v. United States, 22
F.3d 1365, 1370-71 (6th Cir. 1994).
A Brady violation does not occur if
previously undisclosed evidence is disclosed during trial unless the defendant is
prejudiced by the prior non-disclosure. United States v. Word, 806 F.2d 658, 665
(6th Cir. 1986). In order to establish a Brady violation, a petitioner must show
that: (1) evidence was suppressed by the prosecution in that it was not known to
the petitioner and not available from another source; (2) the evidence was
favorable or exculpatory; and (3) the evidence was material to the question of
guilt. Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); see also Strickler v.
Greene, 527 U.S. 263, 281-82 (1999); Robinson v. Mills, 592 F.3d 730, 735 (6th
Cir. 2010). The petitioner bears the burden of establishing a Brady violation.
Carter, 218 F.3d at 601.
Petitioner first raised this issue on collateral review in the state courts. The
trial court initially denied relief finding that Petitioner had not established that he
did not have the documents at the time of his first or second trials and had not
shown that he could not have obtained the documents with due diligence. Bales,
18
No. 05-000880-01-FC (Wayne Co. Cir. Ct. Feb. 5, 2009). On reconsideration, the
trial court further found that Petitioner had not established that the documents,
which primarily concerned the impeachment of an other acts witness, were
sufficiently material or would have affected the outcome at trial. Bales, No. 05000880-01 (Wayne Co. Cir. Ct. May 11, 2009). The Michigan appellate courts
both denied leave to appeal for failure to meet the burden of establishing
entitlement to relief under Michigan Court Rule 6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. As to the
Huron Township police report and therapist notes, those documents merely
provided additional impeachment material for other acts witness, Andrea S.,
regarding her relationship with Petitioner when she was a child. They did not
concern the charged offenses nor directly affect the victim’s credibility. “In
general, impeachment evidence has been found to be material where the witness at
issue ‘supplied the only evidence linking the defendant[ ] to the crime’ . . . or
where the likely impact on the witness’s credibility would have undermined a
critical element of the prosecution’s case.” United States v. Payne, 63 F.3d 1200,
1210 (2d Cir. 1995) (internal quotations and citations omitted). Such was not the
case here. The jury could have discounted Andrea’s testimony altogether and still
found Petitioner guilty of the charged offenses against the victim. Moreover,
19
Andrea S. was subject to extensive cross-examination by defense counsel and was
impeached with inconsistencies in her testimony and with other evidence.
Consequently, the undisclosed information would have provided an additional
means of impeaching her testimony, not the only means. “Where the undisclosed
impeachment evidence merely furnishes an additional basis on which to challenge
a witness whose credibility has already been shown to be questionable or who is
subject to extensive attack by reason of other evidence, the undisclosed evidence
may be cumulative, and hence not material” under Brady. Byrd v. Collins, 209
F.3d 486, 518 (6th Cir. 2000) (quoting United States v. Avellino, 136 F.3d 249,
257 (2d Cir. 1998)); see also Jalowiec v. Bradshaw, 657 F.3d 293, 313 (6th Cir.
2011) (quoting same language and citing Robinson, 592 F.3d at 736);
Montgomery v. Bobby, 654 F.3d 668, 681-82 & n.6 (6th Cir. 2011). Lastly, the
undisclosed police report and notes had low impeachment value in that the
potential inconsistencies concerned details of the other acts testimony such as
whether Petitioner had access to a key to Andrea’s house and the name of the
hotel where they stayed in Louisiana. Similarly, while the police report indicated
that a former neighbor did not recall Andrea telling her about the abuse at the time
it occurred, the report also indicated that another woman confirmed that Andrea
had previously told her that a male friend of the family had abused her.
20
In sum, while the undisclosed police report and notes could have been used
to impeach Andrea S.’s credibility, there is no reasonable probability that the
result of the proceeding would have been different had they been disclosed at the
time of trial. In other words, the documents do not “put the whole case in a such a
different light as to undermine confidence in the verdict.” Cone v. Bell, 556 U.S.
449, 470 (2009).
As to the notes regarding Jennifer Szczesniak, Petitioner has failed to show
that the underlying information ⎯ that Linda Bales was aware of Jennifer’s
claims about Petitioner’s inappropriate behavior toward her prior to 2004 ⎯ was
unavailable to the defense. The notes themselves indicate that Petitioner was
informed
of
the
allegations
involving
Jennifer
and
spoke
to
boyfriend/husband, Linda’s son Jeff, about those allegations in 1997.
her
The
prosecution is not required to turn over information that is already available to the
defense. See Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007) (“Where, like
here, ‘the factual basis’ for a claim is ‘reasonably available to’ the petitioner or his
counsel from another source, the government is under no duty to supply that
information to the defense.”); Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)
(finding no Brady violation where information is available to the defense “because
in such cases there is really nothing for the government to disclose”).
21
The notes are also not particularly favorable or material to the defense given
that Jennifer did not testify at trial, the notes did not concern the charged offenses,
and the notes would have, at best, provided impeachment material as to what
inspired Linda Bales to speak to the victim’s parents and the timing of her actions.
Defense counsel, however, cross-examined Linda about such matters, called her
motives into question, and impeached her testimony in other ways. The notes thus
provided cumulative impeachment material. Moreover, the notes could have been
detrimental to the defense because they indicate that Petitioner acted
inappropriately toward the young girlfriend of his wife’s son and provide details
of that behavior which were not otherwise disclosed to the jury. Again, there is no
reasonable probability that the result of the proceeding would have been different
had the notes been disclosed at the time of trial. Petitioner has failed to establish a
violation of his constitutional rights. Habeas relief is not warranted on this claim.
2.
Prosecutorial Misconduct Claim
Petitioner next asserts that he is entitled to habeas relief because the
prosecutor committed misconduct by denigrating Petitioner and defense counsel
during trial. Petitioner cites several examples in support of this claim. See Pet., p.
13-19.
The United States Supreme Court has stated that prosecutors must “refrain
from improper methods calculated to produce a wrongful conviction.” Berger v.
22
United States, 295 U.S. 78, 88 (1935). It is inappropriate for a prosecutor to make
personal or inflammatory attacks on a defendant or defense counsel. See, e.g.,
United States v. Young, 470 U.S. 1, 9 (1985); West v. Bell, 550 F.3d 542, 565 (6th
Cir. 2008); United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996). To
prevail on a claim of prosecutorial misconduct, however, a habeas petitioner must
demonstrate that the prosecutor’s remarks “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.”
Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright, 477 U.S. 168,
181 (1986) (citing Donnelly); see also Parker v. Matthews, __ U.S. __, 132 S. Ct.
2148, 2153 (2012) (confirming that Donnelly/Darden is the proper standard).
In this case, the Michigan Court of Appeals considered Petitioner’s
prosecutorial misconduct arguments and denied relief. The court explained:
A.
Defendant first claims that the prosecutor improperly
expressed her personal opinion concerning defendant’s
veracity and denigrated defendant in the presence of the
jury. Defendant complains that the prosecutor’s crossexamination of defendant and closing argument were
saturated with improper questions and comments. We
find no error requiring reversal. “[A] witness is subject
to cross-examination concerning any issue in a case,
including credibility.” People v. Reid, 233 Mich. App.
457, 477; 592 N.W.2d 767 (1999), citing MRE 611(b).
Moreover, in evaluating issues of prosecutorial
misconduct, this Court must examine the prosecutor’s
remarks in context, on a case-by-case basis. People v.
Bahoda, 448 Mich. 261, 266-67; 531 N.W.2d 659
23
(1995); People v. Thomas, 260 Mich. App. 450, 454; 678
N.W.2d 631 (2004).
Considered in context, the
prosecutor’s questions (“[s]o what is your testimony
today at 10:01 about that,” “[d]o you want to stick with
the answer absolutely not by yourself,” and “[w]hich
answer would you like us to hold you to?”) addressed
defendant’s inconsistent testimony and were not
improper.
Defendant complains that other comments and questions
by the prosecutor, such as those regarding defendant’s
hearing loss, whether defendant was crying at trial, and
whether defendant could see up the prosecutor’s dress
were improper attacks on defendant’s character.
Although “[i]t is not proper for the prosecutor to
comment on the defendant’s character when his character
is not in issue,” People v. Quinn, 194 Mich. App. 250,
253; 486 N.W.2d 139 (1992), here, the prosecutor did not
commit misconduct by improperly attacking defendant’s
character. Regarding defendant’s alleged hearing loss,
the prosecutor’s inquiries addressed defendant’s assertion
that he had not heard the majority of questions in his first
trial. The prosecutor’s comments regarding whether
defendant could see up her dress were made in response
to defendant’s nonresponsive answers of how he was
able to see that the victim was not wearing underwear,
and were merely a crass attempt to elicit an answer from
defendant.
Defendant failed to assert a timely and specific objection
to these comments.
Defendant claims that the prosecutor’s references during
closing argument to defendant as “a child molester,” “a
control freak,” “a predator,” and “a boogey man,” as well
as her descriptions of defendant’s conduct as “revolting”
and “atrocious,” and her references to defendant telling
dirty jokes, were improper. We note that defendant’s
objection to some of these references was sustained by
the trial court, e.g., “control freak” and “boogey man.”
24
With regard to the other references, there was evidence
that defendant repeatedly molested two young girls,
sometimes in the middle of the night, was “[v]ery
controlling” regarding his wife’s relationship with her
family, and told dirty jokes in front of children.
Therefore, the evidence supported the prosecutor’s
comments, which, although harsh, did not constitute
misconduct requiring reversal. “[P]rosecutors may use
‘hard language’ when it is supported by evidence and are
not required to phrase arguments in the blandest of all
possible terms.” People v. Ullah, 216 Mich. App. 669,
678; 550 N.W.2d 568 (1996).
Defendant also notes that the prosecutor improperly
called him “a liar” during closing argument. “A
prosecuting attorney has the right to comment upon the
testimony in a case, to argue upon the facts and evidence
that a witness is not worthy of belief and to contend that
a defendant is lying.” People v. Jansson, 116 Mich. App.
674, 693; 323 N.W.2d 508 (1982); see also People v.
Howard, 226 Mich. App. 528, 548; 575 N.W.2d 16
(1997). In this case, the prosecutor’s conduct was not so
egregious that defendant was denied a fair trial.
Defendant failed to assert a timely and specific objection
to this comment.
Contrary to defendant arguments, all of the prosecutor’s
comments were not improper, and were not mere
attempts to denigrate defendant. Nor did the prosecutor
improperly use defendant’s character to argue that
defendant had a propensity to commit some bad act. See
MRE 404(b).
Although some of the challenged
comments and questioning were arguably irrelevant, we
find no error requiring reversal.
B.
Defendant next argues that the prosecutor repeatedly
denigrated defense counsel.
It is improper for a
25
prosecutor to suggest that defense counsel is intentionally
trying to mislead the jury, to personally attack or
denigrate defense counsel, or to question defense
counsel’s veracity. People v. Watson, 245 Mich. App.
572, 592; 629 N.W.2d 411 (2001); People v. Kennebrew,
220 Mich. App. 601, 607-08; 560 N.W.2d 354 (1996);
People v. Dalessandro, 165 Mich. App. 569, 580; 419
N.W.2d 609 (1988). However, a prosecutor is entitled to
point out deficiencies in defense counsel’s arguments in
light of the evidence presented. Howard, 226 Mich. App.
at 544-45.
Moreover, under the invited response
doctrine, a prosecutor’s comment that might otherwise
require reversal may not require reversal if the comment
was made in response to a defendant’s conduct that
invited the response. People v. Jones, 468 Mich. 345,
352-53; 662 N.W.2d 376 (2003). Whether the comment
requires reversal depends upon the nature of the initiating
conduct and the proportionality of the response. Id. at
353.
At the outset, we note that although both attorneys’
conduct at trial was contentious, defense counsel’s
conduct was especially so. Indeed, at one point, the court
noted, “I will admonish both of you, because I do believe
that ⎯ I do believe you, particularly, [defense counsel]
have placed some things on the record in front of the jury
that you shouldn’t be saying. Comments on what the
witness said, rather than asking them particular
questions.” The court further admonished the attorneys
that they were to address the court and “not talk directly
to each other or about each other.” Given these
circumstances, when the prosecutor’s comments are
viewed in their proper context, it is apparent they were
generally responses to defense counsel’s arguments and
theories, or were invited by the contentious conduct of
defense counsel himself.
Regardless, to the extent that any of prosecutor’s
comments were objectionable, the trial court repeatedly
instructed the jurors that the attorney’s arguments were
26
not evidence and that they, alone, were the judges of
witness credibility. Given that juries are presumed to
follow their instructions, People v. Graves, 458 Mich.
476, 486; 581 N.W.2d 229 (1998), any error created by
the prosecutor’s comments was cured by the instructions,
People v. Ackerman, 257 Mich. App. 434, 449; 669
N.W.2d 818 (2003). In addition, to the extent this issue
is unpreserved, defendant has failed to show that his
substantial rights were affected. Indeed, given the
incriminating testimony of two different witnesses
claiming that defendant sexually molested them, none of
the prosecutor’s comments were outcome determinative.
Bales, 2007 WL 1203536, at *1-3.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. Petitioner asserts that the
prosecutor improperly denigrated him and attacked his character during crossexamination. The prosecutor’s cross-examination of Petitioner about his version
of events, the responsiveness of his answers, his hearing loss, his crying and
demeanor at trial was done to challenge the veracity of his testimony and highlight
inconsistencies in his testimony.
While the prosecutor was aggressive and
confrontational at times, her questions were proper cross-examination.
A
prosecutor does not commit misconduct by challenging a witness’s credibility and
asking relevant questions. Slagle v. Bagley, 457 F.3d 501, 518 (6th Cir. 2006).
The prosecutor’s elicitation of testimony about Petitioner’s telling dirty jokes or
visiting married women’s houses was found to be relevant and proper by the trial
27
court. Consequently, the prosecutor did not engage in misconduct. “A prosecutor
may rely in good faith on evidentiary rulings made by the state trial judge and
make arguments in reliance on those rulings.” Cristini v. McKee, 526 F.3d 888,
900 (6th Cir. 2008). Furthermore, to the extent that some of the prosecutor’s
questions may have been irrelevant or argumentative, they nonetheless constituted
efforts at discrediting Petitioner’s testimony, not impugning his character per se.
And the trial court sustained defense counsel’s objections to such matters.
Petitioner has not shown the prosecutor’s conduct in this regard rendered his trial
fundamentally unfair.
The prosecutor’s remark about whether Petitioner could see up her dress
comes closer to the line of impropriety. When considered in the context of
Petitioner’s non-responsive answer to the prosecutor’s questions about how
Petitioner could tell that the victim was not wearing underwear, however, the
remark is more understandable. Nonetheless, even if improper, the remark was
brief and not misleading ⎯ and the trial court sustained defense counsel’s
objection. Given such circumstances, it cannot be said that the remark affected
the overall fairness of Petitioner’s trial.
Petitioner also asserts that the prosecutor denigrated him during closing
arguments. The prosecutor’s references to Petitioner as a child molester, predator,
dirty-joke teller, and liar and her descriptions of his conduct as revolting or
28
atrocious were not improper because they were based upon the evidence and
reasonable inferences therefrom. Prosecutors may argue reasonable inferences
from the evidence, Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000), and argue
from the facts that a defense witness, including a testifying defendant, is not
worthy of belief. Portuondo v. Agard, 529 U.S. 61, 69 (2000); Cristini v. McKee,
526 F.3d 888, 901-02 (6th Cir. 2008); see also Hutchison v. Bell, 303 F.3d 720,
750-51 (6th Cir. 2002) (denying habeas relief on prosecutorial misconduct claim
where prosecutor described the defendant as having “evil ways” and being “an
evil force”); accord United States v. Fields, 483 F.3d 313, 360-61 (5th Cir. 2007)
(use of “colorful pejoratives” is not improper as long as the pejorative is supported
by the evidence); Gonzalez v. Carey, 58 F. App’x 269, 270 (9th Cir. 2003)
(reference to petitioner as a “thug” was a reasonable inference from evidence that
petitioner abducted, beat, and stabbed the victim).
While the prosecutor’s references to Petitioner as a control freak and
boogeyman and her comment regarding his alleged affair were more extreme
and/or irrelevant, such comments were limited in scope, not misleading as to the
evidence, and did not render the trial fundamentally unfair.
See Bedford v.
Collins, 567 F.3d 225, 234 (6th Cir. 2009) (“Calling [defendant] a ‘demon’ comes
closer to the line — it was unnecessary and unprofessional — but it goes no
further than similar comments that have not required setting aside a state
29
conviction.”). Moreover, the trial court sustained defense counsel’s objections to
those remarks and the prosecutor did not argue that the jury should convict
Petitioner based upon his character without regard to the evidence. Petitioner has
failed to establish that the prosecutor’s conduct in questioning him or discussing
him during closing arguments deprived him of a fair trial.
Petitioner also asserts that the prosecutor improperly disparaged defense
counsel throughout the trial. As discussed by the Michigan Court of Appeals, the
record reflects that this was a highly contentious trial with both the prosecutor and
defense counsel acting as aggressive advocates. Both sides objected to matters
throughout the trial and were tough on opposing witnesses and each other. In fact,
the trial court was required to referee and admonish both parties during the trial.
Considered in this context, it cannot be said that every stray comment or heated
remark made by the prosecutor was so improper as to affect the overall fairness of
Petitioner’s trial.
A review of the record reveals that many of the prosecutor’s comments and
objections challenged the defense case, were based upon state evidentiary rules,
and/or were not personally derogatory toward defense counsel.
It is well-
established that a prosecutor may highlight inconsistencies or inadequacies in the
defense, Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005), and point out the lack of
evidence supporting the defense theory. United States v. Forrest, 402 F.3d 678,
30
686 (6th Cir. 2005). The prosecutor criticized the defense theory, the validity of
defense counsel’s methods in questioning and impeaching witnesses, and defense
counsel’s characterization of the evidence presented at trial. The prosecutor also
argued from the facts that the defense case was not worthy of belief. While
Petitioner may disagree with the prosecutor’s tactics or dispute the underlying
factual and legal issues, such conduct was not improper, but rather hard-charging
advocacy.
Additionally, several of the prosecutor’s remarks were made in
response to defense counsel’s own conduct or comments. As such, they are less
likely to rise to the level of misconduct warranting habeas relief. See, e.g.,
Darden, 477 U.S. at 182 (one factor in evaluating claims of prosecutorial
misconduct is whether the prosecutor’s statements were “invited by or was
responsive” to the defense).
That being said, a few of the prosecutor’s remarks on defense counsel’s
conduct, such as using the term “unethical” or indicating that counsel was
knowingly violating the rules, cross the line of acceptable advocacy even in such a
highly-contested trial. Such remarks, however, were not so flagrant or pervasive
as to affect the overall fairness of the trial. See Young, 470 U.S. at 11 (discussing
the concept of invited response and stating that “[i]nappropriate prosecutorial
comments, standing alone, would not justify a reviewing court to reverse a
criminal conviction obtained in an otherwise fair proceeding”); United States v.
31
August, 984 F.2d 705, 714-15 (6th Cir. 1992) (ruling on direct review of a federal
conviction that the prosecutor’s comment that defense counsel was trying to trick
the jury did not warrant reversal and stating that such comments were “a
permissible means of arguing so long as those comments are not overly excessive
or do not impair the search for truth.”). Moreover, the trial court properly handled
the matter at the time of trial by sustaining proper objections, overruling improper
objections, admonishing both parties to regulate their behavior, and instructing the
jurors that the attorneys’ arguments were not evidence and that they were to recall
the facts, judge witness credibility, and decide the case based upon the evidence
presented at trial. See, e.g., Knapp v. White, 296 F. Supp. 2d 766, 776 (E.D. Mich.
2003) (ruling that trial court’s instructions defeated habeas petitioner’s claim that
he was denied a fair trial based upon improper prosecutorial argument). Jurors are
presumed to follow the court’s instructions. See Penry v. Johnson, 532 U.S. 782,
799 (2001) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)); United States
v. Powell, 469 U.S. 57, 66 (1984) (“Jurors . . . take an oath to follow the law as
charged, and they are expected to follow it.”). Petitioner has failed to establish
that the prosecutor engaged in misconduct which rendered his trial fundamentally
unfair.
In other words, to the extent that error occurred, it was harmless and did not
impact the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
32
(holding that a constitutional error implicating trial procedures is considered
harmless on habeas review if it did not have a “substantial and injurious effect or
influence in determining the jury’s verdict”); see also Fry v. Pliler, 551 U.S. 112,
117-18 (2007) (confirming that Brecht standard applies in “virtually all” habeas
cases); Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that
Brecht is “always the test” in the Sixth Circuit). More importantly, for purposes
of habeas review, the Court cannot say that the Michigan Court of Appeals’ ruling
to that effect is unreasonable. Habeas relief is not warranted.
3.
Exclusion of Evidence/Right to Present a Defense Claim
Petitioner next alleges that he is entitled to habeas relief because the trial
court erred in excluding certain testimony, which denied him the right to present a
defense. Specifically, Petitioner claims that it was error for the trial court to deny
his request to call psychologist Dr. Katherine Okla to testify about false memories,
forensic interview protocol, tainted interviewing, and memory. Petitioner also
asserts that his right to present a defense was violated when the trial court did not
allow him to present evidence that Rick Baldwin, Linda Bales’ brother, had
allegedly molested his own daughters and had lived with the victim for a period of
time.
As an initial matter, the Court notes that alleged trial court errors in the
application of state evidentiary law are generally not cognizable as grounds for
33
habeas relief. Estelle, 502 U.S. at 67-68; Serra v. Michigan Dep’t of Corrections,
4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court errors in state procedure and/or
evidentiary law do not rise to the level of federal constitutional claims warranting
relief in a habeas action, unless the errors render the proceeding so fundamentally
unfair as to deprive the petitioner of due process under the Fourteenth
Amendment.”
McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting
McGuire, 502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d 867, 871 (6th
Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007)).
Accordingly, to the extent that Petitioner asserts that the state courts erred under
Michigan law, he fails to state a claim upon which habeas relief may be granted.
State courts are the final arbiters of state law and the federal courts will not
intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860
(6th Cir. 2002).
Petitioner also asserts that he was denied due process and the right to present
a defense. The right of an accused to present a defense has long been recognized
as “a fundamental element of due process.” Washington v. Texas, 388 U.S. 14, 19
(1967); see also Holmes v. South Carolina, 547 U.S. 319, 329-31 (2006) (state
rule excluding evidence of third party guilt based solely on strength of
prosecution’s case violated defendant’s right to present a defense); Chambers v.
34
Mississippi, 410 U.S. 284, 302 (1973) (exclusion of hearsay statements critical to
defense which “bore persuasive assurances of trustworthiness,” coupled with
refusal to permit cross-examination of the declarant, violated defendant’s right to
due process). A defendant’s right to present evidence is not unlimited, however,
and may be subject to “reasonable restrictions.” United States v. Scheffer, 523
U.S. 303, 308 (1998). A defendant “does not have an unfettered right to offer
evidence that is incompetent, privileged, or otherwise inadmissible under standard
rules of evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (quoting Taylor
v. Illinois, 484 U.S. 400, 410 (1988)); see also Holmes, 547 U.S. at 326
(recognizing that “well-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead the jury”).
State rules excluding evidence from criminal trials “do not abridge an
accused’s right to present a defense so long as they are not ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve.’” Scheffer, 523 U.S.
at 308 (internal citations omitted). “A defendant’s interest in presenting . . .
evidence may thus bow to accommodate other legitimate interest in the criminal
trial process.”
Id.
When deciding if the exclusion of evidence impairs a
defendant’s rights, the question is not whether the excluded evidence would have
caused the jury to reach a different result. The question is whether the defendant
35
was afforded “a meaningful opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S.
479, 485 (1984)); see also Chambers, 410 U.S. at 302.
In this case, the Michigan Court of Appeals upheld the trial court’s rulings
excluding proposed testimony by Dr. Okla and testimony about Rick Baldwin.
The court explained:
Defendant next argues that the trial court’s refusal to
admit testimony from his “expert” witnesses denied him
his right to present a defense. We disagree. This Court
reviews a trial court’s decision pertaining to the
admission of expert testimony for abuse of discretion.
Ackerman, 257 Mich. App. at 442-43. “For expert
testimony to be admissible, (1) the expert must be
qualified, (2) the evidence must provide the fact-finder a
better understanding of the evidence or assist in
determining a fact in issue, and (3) the evidence must
come from a recognized discipline.” People v. Matuszak,
263 Mich. App. 42, 51; 687 N.W.2d 342 (2004); MRE
702.
***
Regarding Dr. Katherine Okla, the trial court concluded
that testimony regarding false or repressed memories or a
“tainted interview” inducing these memories would not
aid the trier of fact and that the jury could judge the
credibility of the witnesses. Further, many of the issues
cited by defense counsel were not relevant in this case,
there had been no evidence of a “tainted interview” in
this case, and the proffered expert testimony would
merely confuse the jury. We find no abuse of discretion
in the trial court’s ruling.
It appears that the victim provided more details about her
sexual interaction with defendant at this trial than she did
at the first because she “remembered more things that
36
have happened [sic]” concerning her sexual encounters
with defendant, such as defendant exposing his penis to
her. However, the victim also claimed that the reason
she neglected to mention certain other actions by
defendant, in the first trial, was because she didn’t think
it would be important. Similarly, the previous victim
indicated that her testimony was more detailed in this
trial than it was in the first because she remembered
“more things.” But she also explained that her testimony
was more detailed because she felt more comfortable in
the courtroom because she “didn’t know what to expect,”
and noted that she was very sick at the time she testified
in the first trial.
Given the witnesses’ own testimony about their
memories, the expert testimony on the issue of “false
memory” would arguably amount to an impermissible
“opinion or assessment as to the veracity of a
complaining witness in a criminal sexual conduct case.”
People v. Graham, 173 Mich. App. 473, 478; 434
N.W.2d 165 (1988). As the trial court noted, expert
testimony in this regard concerning the witnesses’
testimony would be improper.
Defendant also argues that the trial court denied him his
right to present a defense in not allowing him to present
evidence that the victim lived with an uncle believed to
be a child molester. We disagree. This Court reviews
this unpreserved issue for plain error affecting substantial
rights. People v. Coy, 258 Mich. App. 1, 12; 669 N.W.2d
831 (2003).
Defendant’s reliance on Washington v. Texas, 388 US
14; 87 S Ct 1920; 18 LEd2d 1019 (1967), is misplaced.
Unlike the issues presented here, Washington held that a
state may not deny a defendant his right to compulsory
process where a witness is able to provide relevant
testimony. Id. at 23. Defendant’s cursory argument on
this issue is insufficient to show any basis for disturbing
the trial court’s ruling.
37
Bales, 2007 WL 1203536, at *6-7.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application thereof. First, the exclusion of Dr. Okla’s proposed
testimony was reasonable and within the trial court’s discretion under state
evidentiary rules. See Mich. R. Evid. 702. Dr. Okla had not interviewed the
victim or the other acts witness and she could also not testify as to their
credibility. There were no allegations of “tainted interviews.” Rather, Petitioner’s
defense at trial was that Linda Bales conspired with the witnesses to fabricate the
allegations of sexual abuse in order to gain an advantage in divorce proceedings.
Dr. Okla’s area of expertise was not relevant to the facts of the case and her
testimony was likely to confuse the jury.
Moreover, Petitioner was able to
challenge the testimony and credibility of the victim and the other acts witness (as
well as the other prosecution witnesses) through cross-examination, to present
non-expert witnesses in support of his defense, and to testify on his own behalf
about the events at issue. Given such circumstances, Petitioner has not shown that
the exclusion of Dr. Okla’s proposed testimony deprived him of a meaningful
opportunity to present a complete defense or the ability to contest the criminal
charges against him.
Second, as to Rick Baldwin, the trial court excluded such potential testimony
finding it to be irrelevant and an extraneous or collateral matter. The trial court’s
38
ruling was again reasonable and within its discretion under state evidentiary rules.
See Mich. R. Evid. 402, 403. It also did not violate Petitioner’s constitutional
rights. While evidence that tends to prove a person other than the defendant
committed a crime is relevant, there must be some connection between the other
alleged perpetrator and the crime, not mere speculation by the accused. See, e.g.,
DiBenedetto v. Hall, 272 F.3d 1, 8 (1st Cir. 2001); see also Berry v. Palmer, No.
10-1591, 2013 WL 1188985, *6-7 (6th Cir. Mar. 22, 2013) (unpublished case
denying relief on similar claim). The proposed testimony that Rick Baldwin,
Linda Bales’ brother, allegedly molested his own daughters, concerned a collateral
matter, was speculative, and did not establish that he (Baldwin), rather than
Petitioner, committed the charged offenses. This was not a case involving an
unknown perpetrator or mistaken identity.
Rather, the victim testified that
Petitioner, her uncle and godfather, sexually abused her and Petitioner denied that
such acts occurred.
Testimony about Rick Baldwin and his daughters was
irrelevant and speculative hearsay. Petitioner has not shown that he was denied
the right to present a defense or that the trial court’s evidentiary ruling rendered
his trial fundamentally unfair. Habeas relief is not warranted on this claim.
4.
Ineffective Assistance of Counsel Claims
Lastly, Petitioner asserts that he is entitled to habeas relief because he was
denied the effective assistance of trial and appellate counsel. Petitioner claims
39
that trial counsel was ineffective for failing to object to each instance of
prosecutorial misconduct and that appellate counsel was ineffective for failing to
raise trial counsel’s ineffectiveness on direct appeal in the state courts.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court set forth a two-prong test for determining whether a habeas
petitioner has received the ineffective assistance of counsel. First, a petitioner
must prove that counsel’s performance was deficient. This requires a showing
that counsel made errors so serious that he or she was not functioning as counsel
as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the
petitioner must establish that counsel’s deficient performance prejudiced the
defense.
Counsel’s errors must have been so serious that they deprived the
petitioner of a fair trial or appeal. Id.
As to the performance prong, a petitioner must identify acts that were
“outside the wide range of professionally competent assistance” in order to prove
deficient performance. Id. at 690. The reviewing court’s scrutiny of counsel’s
performance is highly deferential. Id. at 689. Counsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 690. The petitioner bears the
burden of overcoming the presumption that the challenged actions were sound
trial strategy. Id. at 689.
40
To satisfy the prejudice prong under Strickland, a petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. A reasonable
probability is one that is sufficient to undermine confidence in the outcome. Id.
“On balance, the benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on as having produced a
just result.” Strickland, 466 U.S. at 686.
The Supreme Court has recently confirmed that a federal court’s
consideration of ineffective assistance of counsel claims arising from state
criminal proceedings is quite limited on habeas review due to the deference
accorded trial attorneys and state appellate courts reviewing their performance.
“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 131 S. Ct.
at 788 (internal and end citations omitted). “When § 2254(d) applies, the question
is not whether counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.
Id. at 788.
Petitioner first raised these issues on collateral review in the state courts and
was denied relief. The state courts’ denial of relief is neither contrary to Supreme
41
Court precedent nor an unreasonable application thereof.3 Given the Michigan
Court of Appeals’ determination, on plain error review, that Petitioner’s
unpreserved prosecutorial misconduct claims lack merit, as well as this Court’s
determination that those claims do not warrant habeas relief, Petitioner cannot
establish that trial or appellate counsel was deficient and/or that he was prejudiced
by their conduct. Consequently, he has failed to demonstrate that trial or appellate
counsel was ineffective under the Strickland standard.
Habeas relief is not
warranted.
V.
Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to
federal habeas relief on his claims and that the petition for a writ of habeas corpus
must be denied.
Before Petitioner may appeal the Court’s decision, a certificate of
appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A
certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a
court denies relief on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the court’s assessment
3
The Court notes that it would reach the same result under a de novo standard of
review.
42
of the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this
standard, a court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merits. Id. at 336-37.
Having conducted the requisite review, the Court concludes that Petitioner
has made a substantial showing of the denial of a constitutional right as to his first
two habeas claims regarding the non-disclosure of evidence and prosecutorial
misconduct, but has not made a substantial showing of the denial of a
constitutional right as to his other claims.
A certificate of appealability is
therefore warranted in part.
Accordingly;
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED
and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is
GRANTED IN PART and DENIED IN PART.
Dated: October 8, 2013
s/Denise Page Hood
DENISE PAGE HOOD
U.S. DISTRICT COURT JUDGE
43
CERTIFICATE OF SERVICE
I hereby certify that a copy of this order was served upon the attorneys of record
on this date, October 8, 2013, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager
44
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